Citation NR: 9710023
Decision Date: 03/24/97 Archive Date: 04/02/97
DOCKET NO. 95-10 562 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement of the appellant to recognition as the surviving
spouse of the veteran on and after May 13, 1993.
ATTORNEY FOR THE BOARD
D. Dean, Counsel
INTRODUCTION
The veteran had recognized military service from February
1941 to February 1949.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1995 administrative
determination by the Manila Regional Office (RO) of the
Department of Veterans Affairs (VA).
This is a contested claim. The appellee is the veteran’s
legal widow, and she has been recognized as the veteran’s
surviving spouse for VA purposes since May 13, 1993. The
appellant’s marriage to the veteran was deemed valid for VA
purposes under 38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52
prior to May 13, 1993.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that she should continue to be
recognized as the surviving spouse of the veteran for VA
purposes because the precedent opinion of the United States
Court of Veterans Appeals (Court) in Gregory v. Brown, 5
Vet.App. 108 (1993), under which the RO has recently
recognized the claim of the veteran’s legal widow, is without
merit. She emphasizes that she had been in receipt of VA
death pension benefits as the veteran’s surviving spouse
since his death in 1975, and she feels that it is unjust to
deprive her of these benefits, upon which she is financially
dependent, after so many years.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant’s claim for
continued recognition by VA as the veteran’s surviving spouse
on and after May 13, 1993, is legally insufficient.
FINDINGS OF FACT
1. The appellant went through a marriage ceremony with the
veteran in May 1950, and she lived with the veteran from 1950
until his death in 1975, but she is not his legal widow.
2. In an August 1976 decision, the Board determined that the
legal widow could not be recognized as the veteran’s
surviving spouse for VA purposes; but that the appellant’s
marriage to the veteran in 1950, although not legally valid,
could be deemed valid for VA purposes.
3. That decision was in accordance with the controlling laws
and regulations in effect at that time.
4. Under the liberalizing legal precedent set forth in
Gregory v. Brown, 5 Vet.App. 108 (1993) and in accordance
with a July 1994 legal opinion from the VA District Counsel,
the RO determined in an October 1995 Administrative Decision
that the legal widow must be recognized as the veteran’s
surviving spouse, effective from the date of the Gregory
decision on May 13, 1993.
CONCLUSION OF LAW
The October 1995 Administrative Decision by the RO is legally
correct, and the appellant is not entitled to recognition as
the veteran’s surviving spouse by VA on and after May 13,
1993. 38 U.S.C.A. §§ 101(3), 103(a), 7104(c), 7252, 7261
(West 1991); 38 C.F.R. §§ 3.50, 3.52, 3.53 (1996).
VAOPGCPREC 9-94.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In May 1948, the veteran married the appellee. This marriage
was never terminated by divorce or annulment, and
consequently the appellee became the veteran’s legal widow
upon his death in February 1975.
However, the veteran deserted the appellee in approximately
August 1949, reportedly because of his disappointment over
the birth of a daughter to the couple in November 1948. The
veteran and the appellee never cohabited after 1949, nor does
it appear that the appellee attempted to reconcile with the
veteran at any time prior to his death. Likewise, according
to the evidence, the appellee has never attempted to remarry
and never lived with another man as his spouse.
Meanwhile, in May 1950, the veteran and the appellant went
through a marriage ceremony which was without legal effect
due to the prior, undissolved marriage of the veteran to the
appellee. The appellant has stated that she was unaware of
the legal impediment to her marriage to the veteran. The
veteran and the appellant had several children, and they
continued to cohabit together until the veteran’s death in
1975.
Prior to his death, the veteran had been awarded pension
benefits. Both the appellant and the appellee claimed
entitlement to death pension benefits as the veteran’s
surviving spouse. In an August 1976 decision, the Board
determined that the appellee, the legal widow, could not be
recognized by VA as the surviving spouse due to her failure
to attempt to resume the marital relationship. While
recognizing that she was not at fault for the initial
separation from the veteran, the Board held that she was at
fault for the continuation of that separation up until the
time of the veteran’s death. Under the regulations in effect
at that time, the Board concluded that the appellee’s fault
for continuing the separation from the veteran precluded her
recognition by VA as his surviving spouse and defeated her
claim for death benefits. See 38 C.F.R. § 3.53(a) (1976).
In the same decision, the Board also held that the
appellant’s legally invalid marriage to the veteran could
nevertheless be deemed valid for VA purposes under
38 U.S.C.A. § 103(a) and 38 C.F.R. § 3.52 (1976) because she
was unaware of the legal impediment to that marriage; because
she continued to cohabit with the veteran until his death;
and because the claim of the legal widow had not been
granted. Consequently, the appellant was awarded death
pension benefits, effective from the veteran’s death in
February 1975.
Subsequently, on May 13, 1993, the Court entered a decision
which invalidated the regulatory requirement that a legal
widow who did not cohabit with a veteran until his death must
be without fault for the continuance of that separation. The
Court held, instead, that the controlling statute required
only that the initial separation must have been due to the
misconduct of, or procured by, the veteran. Gregory,
5 Vet.App. at 112. 38 C.F.R. § 3.53 was later amended to
reflect this liberalizing legal interpretation by the Court.
These changes are binding upon the Board. See 38 U.S.C.A.
§§ 7104(c), 7252, 7261 (West 1991).
In August 1993, the legal widow attempted to reopen her claim
seeking recognition from VA as the veteran’s surviving
spouse. The RO referred the case to the VA District Counsel
in Honolulu. That office produced a written legal opinion
dated in July 1994 in which it was held that the legal widow
was entitled to recognition as the surviving spouse of the
veteran for VA purposes, effective May 13, 1993, the date of
the Gregory decision. That decision is legally correct and
in accordance with all relevant legal criteria. Pursuant to
that legal opinion, the appellee has been granted death
pension benefits as the surviving spouse of the veteran.
In this appeal, the appellant has challenged the legal
validity of the Gregory decision. However, pursuant to
38 U.S.C.A. § 7261, the Court has the undoubted legal
authority to invalidate VA regulations and to interpret all
relevant questions of law. The Board, on the other hand, has
no authority to overturn or ignore a legal precedent such as
Gregory.
It is further noted by the Board that the appellant’s illegal
marriage to the veteran can only be deemed valid for VA
purposes if “[n]o claim has been filed by a legal surviving
spouse who has been found entitled to gratuitous death
benefits....” 38 C.F.R. § 3.52(d) (1996). That factual
prerequisite is no longer satisfied, and the appellant’s
claim cannot prevail against that of the legal widow of the
veteran.
The Board is not unsympathetic to the appellant’s plight and
realizes that there are strong equitable factors in her
favor, but the requirements of the law, as currently
interpreted by the Court, are clear. In cases such as this,
where the law is dispositive, the claim should be denied
because of the absence of legal merit. Sabonis v. Brown, 6
Vet.App. 426 (1994). Accordingly, the appeal is denied.
ORDER
The appellant’s claim of entitlement to recognition as the
surviving spouse of the veteran on and after May 13, 1993 is
denied.
MICHAEL A. PAPPAS
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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